Rexburg family sues city after paramedics severely burn newborn baby

REXBURG — A local family is suing the city of Rexburg after paramedics admitted to severely burning their child.

Londyn Porter, now just over two-years-old, was born the afternoon of Aug. 12, 2014. The birth was unexpected and took place in the home of her parents, Michael and Jenise Porter.

Paramedics responded and quickly placed Londyn in an ambulance, separating her from her mother, who was left at home to await a separate ambulance.

Troyce Miskin, the paramedic who took Londyn, wrapped the newborn in a foil blanket to help her retain body heat during the ride to the hospital.

A report written by Miskin shows that during the ride to the hospital, heat packs that can exceed 130 degrees were applied to the outside of the foil blanket that Londyn was wrapped in.

According to court documents, the heat packs caused severe second-degree burns to Londyn’s body. The heat was so severe that her skin was immediately singed and the fat below her skin was burned.

Londyn’s mother was not told of the severity of the injuries her child endured until later that afternoon. Court documents don’t indicate why she was not informed immediately.

Londyn’s parents filed suit for unspecified damages in August 2015, alleging the city employees acted in gross negligence. The city is fighting the lawsuit and says the actions of the paramedics were within the standard of care.

After several failed attempts by Londyn’s parents to settle with the city of Rexburg, represented by attorney Blake Hall, the trial is just weeks away.

Court documents: Details of the incident

On Aug. 12, 2014, Jenise began to experience serious contractions which resulted in the unexpected and spontaneous delivery of Londyn Porter.

After calling 911, emergency medical service personnel from the city of Rexburg arrived at the Porter home.

According to a deposition from Troyce Miskin, who is a defendant in the lawsuit, EMS providers chose to separate the newborn infant from her mother. Londyn was transported by ground ambulance to the Madison Memorial Hospital while Jenise was left at the home to deliver the placenta.

Miskin said that, in his opinion, the child was not responding normally.

“Babies are supposed to be happy and healthy and she was not responding that way,” Miskin stated in a deposition. “We were in close proximity to the hospital and we wanted to make sure she got everything she needed.”

Miskin went on to say that paramedics got permission from Jenise to transport Londyn to the hospital.

Miskin wrote in a report that he took possession of Londyn and wrapped her in a foil blanket. He said that outside of the foil blanket he wrapped Londyn in another blanket to help retain body heat.

At that point, Miskin said EMS providers opened the outer blanket and placed heat packs inside – not directly on the skin, but to the foil.

The heat packs have printed warnings advising users not to apply directly to skin, as they can exceed 130 degrees. Miskin later testified that he had read and understood the warnings on the heat packs.

“Londyn screamed and it happened very, very quickly,” Miskin said. “I put my hand in momentarily, I thought it was very hot and pulled the heat packs out.”

Court records show that almost immediately the heat packs caused severe second-degree burns to Londyn, covering 3 to 5 percent of the newborn’s body.

According to Miskin, he was not aware of the severe burns until a nurse discovered them. Miskin admitted that the burns could have only happened while Londyn was in his care.

During Miskin’s deposition, he stated that he had received training indicating the appropriate way to warm an infant was to wrap them in a foil blanket and place heat pads directly on the foil blanket.

Miskin also testified that knowing what he knows currently about the injuries Londyn suffered, he would act in the same manner as before if the circumstances presented themselves.

Miskin stated he had received training that specifically outlined wrapping a newborn in a foil blanket and directly applying heat packs to the blanket as a means of providing warmth. When questioned, Miskin was unable to provide locations or trainers who taught him that information.

Londyn was treated in the neonatal intensive care unit at Madison Memorial and received daily cleanings to the burn wounds.

Londyn’s parents later filed suit against the city of Rexburg and Miskin, stating in their complaint that the city of Rexburg failed to train their employees on proper methods in warming a newborn.

Miskin and the city maintain the actions that resulted in severe burns to Londyn were within the standard of care and that they should be immune from liability. The term “standard of care” refers to how similarly qualified paramedics would have managed the patient’s care under the same or similar circumstances.

Experts weigh in

However, a doctor who treated Londyn in the hospital and a director in paramedics/EMS programs agree what happened to Londyn was not acceptable.

Dr. Richard Jones, the physician who treated Londyn in the neonatal intensive care unit, stated in an affidavit:

“I have concluded that within a reasonable degree of medical certainty, the Rexburg EMS acted recklessly and with gross negligence in causing the severe burns to Londyn Porter.”

Jones went on to compare the actions by Rexburg EMS to taking a hot tray out of the oven using only tinfoil to insulate from the heat.

Jones treated Londyn for weeks after the injury and noted that due to Londyn’s size and risk of respiratory depression, anesthesia could not be used while scrubbing the wounds daily. Londyn had to “endure” the pain with no more pain control then Tylenol.

Dexter Hunt, director of paramedics/EMS programs at the College of Western Idaho, stated in an affidavit that Miskin and the city of Rexburg failed to comply with the applicable standard of care.

“I am not aware of any protocol issued by the State of Idaho Bureau of Emergency Services or any other governmental or authoritative source of EMS training that established as an acceptable standard to use heat packs on a newborn infant or separate the infant from the mother in the circumstances presented in the birth of Londyn Porter.”

Hunt went on to outline the acceptable standard of care, stating that in the entire state, including Madison County, the protocol is to dry the newborn baby and then provide warmth by wrapping the baby in a blanket and placing the child on the chest of the mother.

Miskin, who is in charge of training department staff, was unable to provide an official comment to EastIdahoNews.com on current training protocols within the department due to the pending litigation.

Both Hunt and Dr. Jones concluded that the actions by Miskin and the city of Rexburg were in gross deviation from the standard of care and that it exceeded ordinary negligence.

“It was reckless and grossly negligent,” Hunt wrote in closing.

Family takes the city to court

In February 2015, the Porter family provided written notice through a tort claim to the city of Rexburg and Miskin advising of their intentions to sue.

The city and Miskin either denied responsibility to the claim or failed to respond to the notice of the tort claim.

Although Stephen Zollinger is the appointed city attorney for Rexburg, Blake Hall is representing the city in this case. The Porter family hired attorneys Brett Anderson and Jeffrey Odom to represent them.

Rexburg Mayor Jerry L. Merrill told EastIdahoNews.com that Hall is a contracted attorney for the Idaho Counties Risk Management, which is a member-owned insurance program created exclusively for Idaho’s local governments.

Several motions have been filed by the city, through Hall, including requests for full and complete medical records for Jenise Porter from January 2013 to right now and full and complete medical records from the pregnancy and delivery of other children by Jenise Porter.

According to a motion filed by the city’s attorneys, the city justified their medical discovery requests by claiming Jenise’s OB/GYN records are “relevant to the issue of comparative fault.” That means the city sought evidence that would allow them to reduce their liability by placing blame on Jenise Porter for delivering Londyn at home, according to court documents.

In September, District Judge Gregory Moeller addressed a motion filed by Hall asking the court to dismiss the case, maintaining that paramedics did not act in gross negligences. Moeller denied the motion, leaving the decision to a jury should the case go to trial.

On Monday, during a pre-trial hearing, Moeller heard arguments about a motion in limine that Hall filed. A motion in limine asks the court for an order limiting evidence from being presented by the other side during the trial of the case.

The evidence Hall sought to suppress was Londyn’s mother’s ability to testify on whether or not Londyn experienced pain as a result of the burns. Hall’s argument was that the parents were not present at the time of the injury.

“There has been no testimony to show the child has any memory of the pain,” Hall argued. “There is no way (the parents) could know the pain and suffering of the child. There is no medical evidence a child could remember.”

Odom, Porter’s attorney, refuted the argument and stated “a parent is distinctly aware of cries and screams from their child while in pain.”

Porter’s attorney agreed that the parents were not present at the time of the burn, but reminded the court that they were present during treatment and wound cleaning.

Moeller ordered that during trial, the Porter’s could not testify to the pain Londyn endured that they did not witness.

Moeller also ordered both parties to participate in mediation. If a conclusion is reached, the scheduled jury trial for Nov. 15 will be canceled.

EastIdahoNews.com contacted the Porter family and they referred us to their legal counsel. Their attorneys directed us to public court records and declined to comment due to the pending litigation.

We also spoke with Madison Fire/EMS Chief Corey Child and asked for information regarding training procedures for heat packs on newborn children. In addition, we requested public records relating to training in the actual step by step protocol relating child births.

Child said he would not speak with EastIdahoNews.com about department training because we are reporting on the lawsuit, he refused to release the public records and stated he did not think the public has the right to know about the litigation.

EastIdahoNews.com then filed formal records requests with the city attorney following the conversation. By law, government agencies have three days to reply to record requests, meaning the city should issue a response by mid-week.

EastIdahoNews.com also spoke with Rexburg Mayor Jerry Merrill and asked why, after so many attempts to settle, the city continues to fight this case.

“Those were decisions that were made before my time,” Merrill responded.